United Fruit Co.

National Labor Relations Board - Board Decisions

Nov 1, 1938

9 N.L.R.B. 591 (N.L.R.B. 1938)

In the Matter Of UNITED FRUIT COMPANY and INDUSTRIAL UNION OF
MARINE & SHIPBUILDING `YORKERS OF AMERICA, LOCAL,22
Case No.R-665.Decided November 1, 1938
Shipping Industry-Investigation of Representatives: controversy concerning
representation of employees: rival organizations; refusal of employer to recog-
nize either union until appropriate unit and representation determined by
Board; controversy concerning appropriate unit-Unit Appropriate for Collective
Bargaining: all employees engaged in repair and maintenance of ships or piers
of Company, including working foremen, firemen, storekeepers, and porters,
except supervisory employees ; community of interest, interchangeability of em-
ployees ; similarity of wage scales, hours, and working conditions-Representa-
tizes: proof of choice: membership in unions-Certification of Representatives:
upon proof of'majority representation.
Mr. David Morse, for the Board.
Mr. Hyman N. Glickstein, by Mr. Leonard B. Boudin, of New
York City, for the Industrial Union.
Phillips, Mahoney cC Fielding, by Mr. W. E. Goldman, and Mr.
P. C. Con f orti, of New York City, for I. L. A.
Mr. A. J. Toth, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On October 4, 1937, Industrial Union of Marine & Shipbuilding
`Yorkers of America, Local 22, herein called the Industrial Union,
filed with the Regional Director for the Second Region (New York
City) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of United Fruit
Company, New York City, herein called the Company, and requesting
an investigation and certification of representatives pursuant to
Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On February 2, 1938, the National Labor Rela-
tions Board, herein called the Board, acting pursuant to Section 9 (c)
of the Act and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 1, as amended,- ordered an
investigation and authorized the Regional Director to conduct it and
provide for an appropriate hearing upon due notice.
9 N. L: R. B., No. 54.
591
592 NATIONAL LABOR RELATIONS BOARD
On February 2, 1938, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
the Industrial Union and upon the International Longshoremen's
Association, Local 1474, General Maintenance Workers, herein called
I. L. A., a labor organization claiming to represent employees directly
affected by the investigation. Pursuant to the notice, a hearing was
held on February 9 and 10, 1938, at New York City, before James C.
Paradise, the Trial Examiner duly designated by the Board. The
Board, the Industrial Union, and I. L. A. were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. During the course of the
hearing, the Trial Examiner made several rulings on motions and on
objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On March 10, 1938, a hearing was held before the Board in Wash-
ington, D. C., for the purpose of oral argument. The Industrial
Union and the I. L. A. were represented at the hearing and partici-
pated in the oral argument. At the hearing, counsel for the Indus-
trial Union requested that the record be reopened for the taking of
additional testimony relative to the contention of the Industrial
Union that certain employees worked exclusively on the repair and
maintenance of the piers of the Company. In view of the considera-
tions set forth in Section V below, the conclusions of the Board would
not be affected by such testimony. The request that the record be
reopened is hereby denied. At the conclusion of the hearing, counsel
for the Industrial Union submitted a number of affidavits and a brief
which the Board has considered.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
United Fruit Company is a New Jersey corporation engaged prin-
cipally in the production, transportation, and sale of bananas and
other tropical products. It owns and operates in connection with its
business approximately 85 ships many of which are registered in
ports of the United States. There are 8 ships of the Company regu-
larly operating between New York and Central American ports whose
cargoes are received for distribution at piers 3, 7, and 9, North
River, New York City. Many of the other ships on occasion- operate
between New York,and Central American ports. On February 4,
1 The Company was not represented by counsel at the hearing , but, E _ J , Neary, an
executive of the Company , appeared as its chief witness. -
.DECISIONS AND ORDERS 593
1938, the Company employed at the, three piers approximately 104
persons engaged in the maintenance and repair of ships or piers,
exclusive of firemen, porters, and supervisory employees.
We find that the Company is engaged in trade, traffic, transporta-
tion and commerce among the several States and between the United
States and foreign countries and that the employees of the Company
are directly engaged in such trade, traffic, transportation, and
commerce.
II. THE ORGANIZATIONS INVOLVED
Industrial Union of Marine & Shipbuilding Workers of America,
Local 22, is a labor organization affiliated with the Committee for
Industrial Organization , admitting to its membership all employees
of the Company engaged in the repair and maintenance of ships,
excluding supervisory employees.
International Longshoremen 's Association , Local 1474 , General
Maintenance Workers, is a labor organization affiliated with the
American Federation of Labor. It admits to its membership all
workers engaged in the upkeep and repair of ships or piers in the
port of New York and vicinity , exclusive of supervisory employees.
III. THE QUESTION CONCERNING REPRESENTATION
In July 1937, I. L. A. sought recognition as the exclusive bargain-
ing representative of the Company's employees engaged on the piers
in ship maintenance and repair work, and in pier work. On August
16, 1937, the Industrial Union sought recognition as the exclusive bar-
gaining representative of the employees of the Company whose duties
are connected with the maintenance and repair of ships, excluding
pier repair workers. Each union, claiming to represent a majority of
the employees within the respective units, also sought to negotiate a
contract with the Company. The Company stated that it would not
deal with either union until the Board determined the appropriate
bargaining unit and certified a bargaining representative.
We find that a question has arisen concerning the representation of
the employees of the -Company. -
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
,tends to lead to labor'disputes burdening and obstructing commerce
-and the free flow of commerce.
594 NATIONAL LABOR RELATIONS BOARD
jV. THE APPROPRIATE UNIT
The Industrial Union claims that all 'employees of the Company
doing ship repair and ship maintenance work at the New York piers
,constitute an appropriate bargaining unit. It states that certain em-
ployees work exclusively on the repair and maintenance of the piers
of the Company and that they should be excluded from the bargaining
unit. It states also that employees engaged on pier work use separate
locker rooms and tool shops, and punch different time clocks from
those employees engaged in ship repair and maintenance work. At
the hearing two witnesses testified in support of the claim that there
were distinct employee groups for pier and for ship work. At the
time of the oral hearing before the Board, the Industrial Union
submitted affidavits of some 14 employees to the effect that they
worked exclusively on ship work, except in emergency cases.
On the other hand, the I. L. A. contests the claim of the Industrial
Union as to the existence of distinct working groups and contends for
a unit composed of all employees of the Company engaged in the
-repair and maintenance of ships and piers, excluding supervisory and
.clerical employees. In support of the I. L. A.'s position, nine wit-
nesses testified that virtually all of the employees work on both ships
and piers, that none are hired for ship or pier work exclusively, and
that, depending on the need at a given time, a man may work on ships
.or on pier maintenance. William A. Ingham, in charge of personnel
and ship maintenance, E. J. Neary, manager of the Company, and
H. C. Ames, supervisor in charge of pier maintenance, all testified to
the same effect.
The evidence as a whole indicates that the Company does in fact
have separate supervisors for ship work and pier work, but the pier
maintenance crew is made up of persons temporarily transferred from
the ship work and thus the pier maintenance personnel does not re-
-main constant or perform pier work exclusively. However, irrespec-
tive of whether two separate employee groups exist, it is clear that
-the various employees are governed by the same rules and regulations
.as to hours of work, overtime, and holidays. The same scale of wages
prevails for all classifications whether engaged in ship work or pier
work and the only pay roll in connection with maintenance and repair
work of the Company is certified by Ingham and O'Sullivan, super-
visors in charge of ship repair work, and not by Ames, supervisor in
charge of pier maintenance. Thus, the interests of the various em-
ployees are closely allied. We are of the opinion that the various
-employees, whether engaged in ship work or pier work or both, should
be- included in one bargaining unit:
The above discussion 'does not apply in full to the several firemen,
-storekeepers, and porters (really pier janitors) employed'by the Com-
pany at the piers. The record indicates that the duties of such em-
DECISIONS AND ORDERS 595
ployees are more exclusively confined to the piers than the other
employees . They work regularly all year round and not as required
by the arrival of vessels or the need for specific repairs or construction ;
their names appear on separate pay rolls under the heading of rentals.
certified by E. J. Neary, manager of Company. The Industrial Union
feels that these employees should be excluded from the bargaining
unit. The I . L. A. desires their inclusion . Although it is clear that
these employees are in certain respects distinguishable from the other
employees, we feel that the differences are not of such nature as to
militate against their inclusion in a unit together with the other
employees.
We find that all the employees of the Company engaged in the
repair and maintenance of ships or piers, including firemen, porters,
and, storekeepers , and excluding supervisory employees , colistitute a
unit appropriate for the purposes of collective bargaining and that
said unit will insure to the employees of the Company the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
- There was introduced in evidence at the hearing a classified list 3 of
104 employees of the Company who were on February 4, 1938, engaged
in ship repair, ship maintenance, and pier repair work, exclusive of
firemen, storekeepers, porters, and supervisory employees. Both
unions agreed to the use of this list in determining the question of
representation. At the conclusion of the hearing; the names of two
storekeepers, seven firemen, and one porter were read into the record
to be used in the consideration of the questions of election or certifica-
tion if the Board found them to be within the appropriate unit.
The Board has found the latter group to be within the appropriate
unit. Thus, there are 114 employees within the appropriate unit.
The Industrial Union introduced 35 application cards into evidence
in support of its claim of representation of a majority of the em-
ployees,within the appropriate unit. I. L. A. submitted 83 member-
ship cards into evidence in support of its claim. There was no dispute
at the hearing as to the validity of the membership cards of either
union, the cards of each union being admitted into evidence without
contest.
A check of the membership cards of the respective unions against
the aforesaid list, as supplemented, shows that 72 of the 114 employees
in the appropriate unit have authorized` the I. L. A. to represent them
and that 27-have designated, the Industrial Union as their representa-
tive. The names of three employees appear on the membership cards
of both unions. It is-clear, therefore, that a majority of the- employees
See Board Exhibit No 2.
134008-39-vol. ix--39
596 NATIONAL LABOR RELATIONS BOARD -
of the Company within the appropriate unit desire the I. L. A. to
represent them for the purposes of collective bargaining.
We find that the I. L. A. has been designated and selected by a
majority of the employees in the appropriate unit as their representa-
tive for the purposes of collective bargaining. It is, therefore, the
exclusive representative of all the employees in such unit for the
purposes of collective bargaining, and we will so certify. _
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of the United Fruit Company, New York City,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
-2. The employees of the Company engaged in the repair and main-
tenance of ships or piers, including firemen, porters, and storekeepers,
and excluding supervisory employees, constitute a unit appropriate,
for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the National Labor Relations Act.
3. International Longshoremen's Association, Local No. 1474, Gen-
eral Maintenance Workers, is the exclusive representative of all the
employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the National Labor Relations
Act.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor.
Relations Board Rules and Regulations-Series 1, as amended,
IT IS HEREBY CERTIFIED that International Longshoremen's Associa-
tion, Local No. 1474, General Maintenance Workers, has been desig-
nated and selected by a majority of the employees ,of the United
Fruit Company, New York City, engaged in the repair and mainte-
nance of ships or piers, including firemen, porters; and storekeepers,
and excluding supervisory employees, as their representative for the
purposes of collective bargaining and that, pursuant to the provisions
of Section 9 (a) of the Act, International Longshoremen's Associa-
tion, Local No. 1474, General Maintenance Workers, is the exclusive
representative of all such employees for'the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
MR. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Decision and Certification of Representatives.